29 F. 732 -

29 F1d 732

Case Text

132

FP:DERAI, REPORTER.

manner:of crossing, as well as the amount of compensation, having due regard to the interests of both roads, as well as those of the public. 6. As in its bill in equity the complainant avers the legal existence of the defendant corporation, such legal existence will be assumed; unless proof to the contrary is offered. The motion, therefore, ofd¢fendant, for leave to answer in 20 days, will be overruled, without' prejudice to its right to present any defenses to this proceeding at the time named for the appointment of commissioners. The motion to 'set aside the appointment of commissioners heretofore made will be sustained, and 'on Wednesday next, February 9th, at 2 o'clock, at my chambers in Leavenworth, I will proceeclto appoint new commissioners, at which titneand place I will hear such suggestionsas eitber party may have to offer in respect to the proper parties ' to be appointed.

MEROAt.rTILE TRUST

,Co.

t1. PITTSBURGH

& W. R; Co.

(Oirtnt# Oourt,

1.

w: ,17.PennayUvania.

February 14, 1887.)

RAILROAD Comu-ms-:MoRTGAGE-RECEIVER-INTERvENTION.

The appoiiitttlentofreceiverso:f 8 railroad company, pending statutory pro· ceedings, court against the company for the assessment of construction damagee. does not interfere with the prosecution thereof, nor is the plain· tiff therein bOund to bring in the receivers. It is their business to intervene, and make defense. if they wish to do so. The jurisdiction of such court cannot be called in question collaterally, the ground of a supposed,mista'ke in holding the plaintiff's case to be within statutorY'remedy. " . ' ,TO LOT-OWNERS. . . '

S.SAME.,..-JURISDIC'J1l0N-COLLATERAL ATTACK.

,on

The claim pfa,lot-owner for damages, resulting from the construction arid t' maintenanceon the street in front of his lot of a railroad mounted on trestle· " work, is paramount to the claims of the railroad company'Bmortgage creditors. 4:. SAME-W'AtvER-,-CONS'1'RtJ'CTION 011' ROAD IN STREET. . . '. TheJot·owner does not waive his paramount right by allowing the railroad company to construct its railroad on the street without first making comnensation or'givinJ{security according to the constitutional requirement.

8.

SAME-PRIORlT¥,OF

Sur exceptioDlfto master's report on petition of John A. Verner for an order on receivers of Pittsburgh & Western Railroad Company to pay

In Equity.

judgment for damages from construction of railroad, obtained by him in the court of common pleas ofAllegheny county, Pennsylvania. John S. Fer[fU80n and James T. Buchanan, for exceptions ex parte petitioner. ,Johns McOleave, for exceptions ex parte receivers. ACHESON, J. 1. The appointnientby this court of the receivers did not oust the jurisdiction which the court of common pleas had previously acquired of the proceedings against the railroad company instituted by

MERCANTILE TRUST 00. ". PITTSBURGH &I: W R. 00.

733

the petitioner for the· afilcertainment of his damages, nor did it operate as a stay thereof. Neith!lr was the petitioner bound to bring in the te-ceivers as defendants, as he was seeking no relief against them. It was their bt;lsiness to intervene, and take defense. if they wished to do 'so. High, Ree. §§ 258-260; Tracy v. First Nat. Bank, 37 N. Y. 523. The master was therefore correct in his determination that the petitioner's rights as a judgment creditor are not to be denied recognition simply because he proceeded in the prosecution of his suit without making the reeeivers parties, or notice to them, and without leave of .this court. 2. We concur with the master that it is not open to the receivers, or to the mortgage creditors, in a collateral way, to question the jurisdiction of the '<:lourt of common pleas on the ground that the trestle-work built on the· street in front of the property, and by reason . of the construction of which his damages arose, was not an "embankment," within the meaning of section 10 of the act of February' 19, 1849; (Puid. 1423, pI. 47,) and therefore that the proceedings in the court of common pleas were unauthorized by that act. It was for the court of oommon pleas to determine whether the trestle-work was such an embankment. The conclusion of that court upon that question presumably was right; but, whether so or not, it is not impeachable coUat,erally. It may be added that,if the petitioner's case was not embraced by the' 8.9t of 1849, then, under the ruling in R. 00. v. DunCOfl'/,', 111 Pa. St. 352, 5 Atl. Rep. 742, his damages were recoverable ina oommon-Iaw action. The subject-matter of the claim being thus within the general jurisdiction of the court, it follows that, if any mistake was made, it was, at most, in the mere form of procedure. In any view,however, the tribunal for the rectification of the supposed error is the supreme court of Pennsylvania. Standing in full force, the judgment, must be treated here as conclusive. 3. This brings us to the consideration of the question whether the petitioner's claim is of such a kind or nature as to be entitled to payment out of the funds in the hands of the receivers in preference to the claims of the mortgage creditors. The learned master held that it was not. From this conclusion we are constrained to dissent. It is true that no part of the petitioner's lot of ground was appropriated by the railroad company, and, in view of the decision in Allegheny Oity v. Moorehead, 80 Pa. St. 138, it may even be conceded that the petitioner had no title in the soil of Bank Lane, the street upon which the railroad was built. But the rule which absolved a curporation, acting under the right of eminent domain, from liability for consequential damages to private property, nev.er had any foundation .in natural justice, and has been abrogated by the fundamental law of Pennsylvania, which enjoins compensation to be made alike for the taking, injury, or destruction of private property. COIist.1874,§ 8, art. 16; PU8f!!J v. Allegheny City, 98 Pa. St. 522. If, then, the petitioner had no proprietary title in the soil of Bank Lane, he had an easement therein appurtenant to his abutting lot. of ground, and,· his property. having' been injured by the construction and of 'the on the street, his

734

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t

FEDERAL REPORTER.

'elU!eg,ndoubtedly is within: all the provisions of thtfabove-cited section -af·the ;constitutiori, which, after prescribing ooIllpensation, declares: shall be paid or secured before suoh taking, in. resulting from the injury or destruction of private property are put upon the sante footing as damage& sustafued iby a direct aP'Propriation. This is as it should be. N!>'W1 'in Western Pennwylvanw. R. 00. v. Johmton, 59· Pa. St. 290, it w8she1dthat a land-owner's claim for damages, arising from the taking of ptoperty,is paramottntto a mortgage given by the railroad company before .the damages were:assessed and paid, or secured to be paid; and in JJycO'lJting Gas .Water Oo.v. Moyer, 99 Pa. St. 615, this principle was applied to a case of consequential damages, it being there decided that a mill-owner's claim for damages, resulting from a decrease in the flow of water in his which thecoinpany caused by interfering with the run which supplied his mill, was 8 continuing lien on the corporate property, extinguishable only by: payment, or security fOl payment. In the former of these cases it was distinctly ruled, also, that the claimant's paramount right was not lost or waived by allowing the corporation to construct its railroad without first making payment or giving security. What superior equit.ies have the mortgage bondholders here? We perceive none. It cannot be pretended that the petitioner, by word or act, misled them. Moreover, inquiry whether the railroad company had discharged the claims for construction damages was a matter of common prudence. If these creditors made no investigation, they have only themselves to blame. In fine, the mortgagees, having no other or better title than that of the railroad company itself, can with no more justice maintain a railroad, mounted on trestle-work on the street in front of the petitioner's property, to his permanent injury, without making him compensation, than'the corporation could. The petitioner's exceptions to the master's conclusions of·law must be sustained, and alI other exceptions overruled. Let a decree be drawn in accordance with this opinion.

WYMAN t1. CITIZENS'NAT. BANK OF FARIBAULT.

Cowrt, D.:Minne8otiJ.

February, 1887.)

. NATIONAL BANXS-LENDING MONEY UNLAWFULLy-PENALTY.

S. § 5200, pro.viding that tbe amount for which any one indi.. viduaf or.tlrm shilll be indebted to a national bank shall not exceed a certain sum, when sucll a bank violates the provision by lending to one person an amount in excess of the limit, such person cannot set up the violatIon of the statute as a defense to his liability on the note. If a peJ;lalty is to be enforced A against the bank, it can be done.only at the instance of the contract entered into by tlie bank in violation of this section 18 not void.